Hot docs from Florida show why Gore might have won a recount.

Update: Hot Recount Docs!

Written evidence that Gore might have won—and that the NYT blew it.

Several valued kausfiles readers have emailed to suggest I was naive to argue that Gore—contrary to the New York Times'spin— might well have won the court-aborted Florida recount. My argument was that, had the recount been allowed to go forward, supervising Judge Terry Lewis might have decided to count the crucial "overvotes"—double-marked ballots that, the recount shows, would if examined have given Gore a narrow victory.

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I had relied on an Orlando Sentinel story quoting Judge Lewis—from an interview conducted "earlier this year" in which Lewis said he'd have been "open to" counting the overvotes.

Wasn't it possible, my skeptical readers noted, that Judge Lewis was just saying this to the Sentinel months after the election, maybe in an attempt to make himself look good—or to tell the Sentinel reporters what they wanted to hear? After all, the Sentinel had discovered the "overvotes," and Lewis would look pretty bad if he said, "Yeah, but I wasn't going to even consider counting them even though they're valid votes." How could I be sure Lewis wasn't just spinning?

Answer: I wasn't sure. But now I am.

Why? I've got proof.

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Or, rather, Newsweek's Michael Isikoff found the proof, months ago, in the form of notes that Judge Lewis wrote on faxes he sent to two state canvassing boards. Isikoff has now posted a story with this information on Newsweek's Web site. The annotated faxes show, in Isikoff's words, that "just hours before the U.S. Supreme Court issued [its order] Lewis was actively considering directing the counties" to count the overvotes. (One of these faxes is reprinted here—that's Lewis' handwriting in the upper right corner.) Specifically, in response to an inquiry from the Charlotte County Canvassing Board, Lewis writes:

If you would, segregate "overvotes" as you describe + indicate in your final report how many where you determined the clear intent of the voter. I will rule on the issue for all counties. Thanks

Here is clear, dated contemporaneous evidence that Lewis was indeed considering counting overvotes, just as he told the Sentinel. He had even directed that the overvotes actually be counted and the number of valid ballots be sent to him. A hearing had been scheduled the following day to address the issue, Lewis told Newsweek.

Even worse, for the "Bush would have won" theory promoted by the New York Times and others, Lewis' statements to Isikoff indicate a pro-overvote ruling would have not only been possible but probable. Lewis told Newsweek:

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Logically, if you can look at a ballot and see, this is a vote for Bush, or this is a vote for Gore, then you would have to count it. … Logically, why wouldn't you count it? [Emphasis added.]

Indeed, since Lewis had already ordered the overvotes counted, with the totals reported to him, not counting them would have amounted to Lewis saying, "I know you have found these perfectly valid uncounted ballots, but I'm not going to let them count." It wouldn't have been easy to defend that position on the inevitable appeal.

(Keep in mind that Lewis was one of the few straight-shooters in the whole Florida saga. He gave Gore a big victory one day, and then gave Bush a big victory a few days later when he upheld Secretary of State Katherine Harris' decision to ignore some manual recounts. It's hard to dismiss him as a partisan hack.)

Had there in fact been a statewide re-examination of the overvotes, Gore would have won—according to the media recount (which was, admittedly, not precise)—by a margin ranging from 42 to 171 votes.

It's now clearer than ever that, when Ford Fessenden and John Broder wrote confidently that "George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount … to go forward," the two Times reporters didn't know what they were talking about.

P.S.: Isikoff's evidence is embarrassing not only to the Times and to Bush (who we now know needed the U.S. Supreme Court) and to Gore (who foolishly didn't ask for the crucial overvotes to be counted). It's also embarrassing to ... Jeffrey Toobin! Toobin wrote an entire, 280-page pro-Gore book about the Florida recount and somehow didn't come up with the crucial evidence that would have made his case. (Why do I have it in for Toobin? Click here, here, andhere.)